Search

How can we help?

Icon

Does abandoning a tender defeat a bidder’s claim?

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages. Other remedies may also be available, depending on whether a contract has been entered into or not by the public body.

But what if, after a challenge has been brought, the public body decides to abandon the tender? Does this defeat the bidder’s claim to damages?

This is the question the High Court recently had to consider in the case of Amey Highways Limited v West Sussex County Council. Amey had challenged the outcome of a highways contract which had been awarded to another bidder which scored just 0.03 more points than Amey. Amey contended that the Council had acted in breach of the Regulations in evaluating the tenders; and that had it not been for the Council’s breaches, it would have scored higher and should therefore have been awarded the contract.

After Amey’s claim had been issued, it successfully resisted an initial attempt by the Council to have the claim struck out. At that stage, concerned by the risks involved in continuing the litigation, the Council decided to abandon the procurement and re-tender the contract. Its expectation and intention was that abandoning the procurement would have the effect of bringing Amey’s claim for damages to an end.

However, the Court decided that the decision to abandon the tender did not have any effect on Amey’s claim. There was no suggestion that Amey would not have been awarded the contract, if they were correct in showing that they should have received higher marks. In addition, there was no evidence that the Council would have decided to abandon the procurement in any event, had it not been for the claim – the sole driver of the decision to abandon had been the hope that this would extinguish Amey’s claim.

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages.

The court decided that the Council’s decision to abandon, although it might have had the effect of depriving a bidder of a claim which had not come into existence until after the decision, did not have any impact on a cause of action which had already accrued before the date of the decision.

Public bodies will need to consider the impact of this decision carefully when deciding how to deal with procurement challenges, and be aware that abandoning a tender will not always be a get out of jail free card: a disgruntled bidder may still have the right to claim damages, even after a procurement has been abandoned and re-started.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 12 June 2024
  • Privacy and Data Protection

UK data protection: Important basics

Sometimes, data protection can seem like unhelpful red tape. At other times, it is critical to cultivating a trustworthy reputation.

art
  • 11 June 2024
  • Immigration

UK Immigration Roundup – May to June 2024

As the UK approaches the upcoming general election, immigration remains a focal issue in political discussions. The Conservative party’s recent proposal to cap visas for skilled migrant workers has alarmed various industries who are concerned that a limit to migration could harm vital sectors of the UK economy.

Pub
  • 06 June 2024
  • Employment

Talking Employment Law: What does the new Worker Protection Act 2023 mean for employers?

In this podcast, Lucy Densham Brown and Shauna Jones, members of the employment team, will review the new Worker Protection Act 2023 and provide some guidance on how employers should review their policies in preparation for October.

art
  • 03 June 2024
  • Commercial Real Estate

Sustainability and commercial property: green leases  

Climate change is considered by many the biggest threat we are facing today. With the UK said to have one of the oldest housing/building stocks, the focus on a building’s environmental performance and sustainability has never been more critical.

art
  • 03 June 2024
  • Employment

Using AI technologies in recruitment: is it fair and transparent?

In a rapidly evolving digital landscape, where artificial intelligence (AI) plays an increasingly pivotal role in HR and recruitment processes, ensuring responsible and ethical implementation is paramount.

Pub
  • 03 June 2024
  • Employment

Navigating the Labour Party’s New Deal for Working People: Legal implications and opportunities

Join Monica Atwal and Amanda Glover, for this in-person seminar on ‘Navigating the Labour Party’s New Deal for Working People: Legal Implications and Opportunities’ at our Reading office on Thursday, 20th June.